This is a proceeding wherein the defendant is charged with two counts of criminal possession of a weapon in the second degree and disorderly conduct.
On 26 July 2007, a Mapp-Huntley was held before this court. At this hearing Sgt. KK and the defendant, JE, testified. The court finds incredible. At the end of the hearing, both parties requested additional time to submit post-hearing memoranda of law, which they both did.
On 21 December 2006, at around 8:00 to 8:20 pm, a group of five or six individuals, including the defendant, were gathered in front of 85-02 Rockaway Beach Boulevard, which is part of a public housing complex referred to as the Hamel Houses. They were blocking the pedestrian walkway going into the building. The Sergeant, in an unmarked car with two other officers, pulled over, turned on the red bubble lights, and the Sergeant, with his shield out, told them to leave the area. They nodded and started to walk away in apparent compliance with the Sergeant’s directive. Upon seeing this group walk away, the police left the scene.
The Sergeant, in the same car, came back to the same building two or three minutes later. Although the defendant was there again, it is unclear whether the others were with him were a part of the same group the Sergeant asked to leave earlier. Again, he asked them to leave. Once again, they appeared to leave in compliance with the directive and the Sergeant left.
About two minutes later the Sergeant once again returned and the same group was there. This time, however, the three police officers, for the first time, exited the unmarked police vehicle. The Sergeant believed the group was impeding the pedestrian walkway and having been given two prior opportunities to leave, now the officers were going to stop, question and frisk, possible summons all the individuals in front of the building.
The officers told all of them to put their hands on the wall. The defendant, along with the others, complied and put their hands up. He reached and checked the defendant and found a gun in his pants pocket. The defendant told the Sergeant: “You know what’s going on here. I need it for protection”.
Pursuant to Penal Law § 240.20 and Penal Law § 205.30, the People argue that the seizure of the weapon was justified as the product of a search incident to a lawful arrest in that the police had probable cause to arrest the defendant for disorderly conduct. In the alternative, the People argue that the seizure of the weapon was justified as the product of a level three intrusion under People v De Bour.
In De Bour, the Court of Appeals set forth a graduated four-level test for evaluating street encounters initiated by the police. As each level increases, the amount of permitted police intrusion increases, from the simple request of information to the loss of liberty and a full-blown search.
“Level one permits a police officer to approach a person and request information and requires that the request be supported by merely an objective, credible reason, not necessarily indicative of criminality; Level two, the common-law right of inquiry, a somewhat greater intrusion, requires a founded suspicion that criminal activity is afoot; Level three allows an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual committed or is about to commit a crime and once a person is lawfully stopped, under level three, the officer is authorized to frisk the person if the officer reasonably believes that he or she is in danger of physical injury; and, Level four, arrest, requires reasonable cause to believe that the person to be arrested has committed a crime.
The court finds that Level Three of De Bour does not apply to Petty Offenses. As the court wrote the third level is:
“Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person. A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed.”
De Bour recognized that the authority for the level three intrusion comes from statute, in particular, subdivision one of CPL 140.50. CPL 140.50 (1) states:
In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer’s employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
People v. Hollman once again defined level three and limited it to felonies and misdemeanors:
“Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person.”
The Court of Appeals once again stated the level three standard and limited it to felonies and misdemeanors:
“level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor.”
“Temporary detentions are authorized by statute only for felonies and misdemeanors, not violations (CPL 140.50 ).”
Therefore, petty offenses, such as disorderly conduct, are excluded from level three intrusions.
In the instant case, if the court were to credit the Sergeant’s testimony that he feared for his safety, when he put his hand into the defendant’s pocket and pulled the defendant’s hand out of that pocket, there is no evidence that he felt the weapon or an object consistent with a weapon when he pulled the hand out, or that he saw a bulge, or that after he pulled the hand out he felt the pocket to see if there was a weapon. While the People are correct that the police do not have to wait until they see the “glint of steel” before they can act to preserve their safety as held in People v Benjamin, they are incorrect in how it would apply to the instant case.
The act to preserve the officer’s safety was a frisk, not a full-blown search by reaching into the pocket without first frisking. If one were to credit the Sergeant’s testimony, once he put his hand into the defendant’s pocket to remove the defendant’s hand, since he did not simultaneously feel a weapon, or see a bulge, Benjamin does not allow the officer to conduct a subsequent full-blown search into that pocket.
Accordingly, even if level three applied to the instant situation, it would have allowed the officer to conduct a limited frisk and not a full-blown search.
The fact that the Sergeant’s suspicion regarding the defendant turned out to be correct cannot serve to establish the necessary, probable cause. Reasonable suspicion is defined as the quantum of knowledge sufficient to induce an ordinary prudent and cautious man under the circumstances to believe criminal activity is at hand.
Level three does not apply to the instant situation. The only rationale to allow this search would be if the search had been incident to a lawful arrest. Therefore, the issue is whether the police had probable cause to arrest the defendant for a criminal offense.
In People v Hicks, the arrest of an individual, and any search made incident to the arrest, are unlawful unless supported by probable cause. While probable cause does not require as much proof as is necessary to sustain a conviction, it does require more than mere suspicion. Conduct which is equally susceptible to innocent or culpable interpretation cannot give rise to probable cause.
The court notes as ruled in People v Benjamin that the disorderly conduct statute was designed to proscribe only that type of conduct which has a real tendency to provoke public disorder. This conduct must be of public rather than individual dimension as held in People v Munafo. This conduct is evaluated by considering the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny. Accordingly, a defendant cannot be guilty of breach of the peace if he annoyed no one, disturbed no one, and interfered with no one.
Disorderly conduct exists only where the offending conduct is “reinforced by a culpable mental state to create a public disturbance.
Accordingly, there was no probable cause to arrest the defendant for disorderly conduct under this subdivision.
The People argue that the defendant by running away from the Sergeant created probable cause to arrest for resisting arrest. A key element of resisting arrest is the requirement that the arrest be authorized — in other words that the arrest was premised on probable cause. The officer never testified to telling the defendant to halt, or that he was being arrested when the defendant allegedly ran. The court finds no probable cause for arresting the defendant for disorderly conduct, so there can be no resisting arrest.
Once the police encountered the defendant for a third time, they exited the vehicle for the first time. The purpose, as stated by the Sergeant, was to stop, question, frisk, and possibly summons all the individuals in front of the building. However, the police never testified as to whether he or any other officer inquired as to whether the defendant, or anyone with the defendant, lived in the subject building or was visiting someone in the building as was held in the similar case of People v Hendricks. There was also no testimony that the defendant was congregating in front of this building for any reason other than to exercise his right of freedom of assembly, as recognized in the first amendment of the United States Constitution made applicable to the states through the 14th amendment and Section 9 of Article I of the New York State Constitution. Nor was there any testimony as to whether anyone tried to walk by or enter the building and they were unable to do so because of the group’s blocking of the entrance. Since there is no probable cause, the Sergeant’s act of reaching into the defendant’s pocket was improper under Article 1, Section 12 of the New York State Constitution. There is no reasonable analysis that would allow this court to find this search proper.
Accordingly, the handgun is suppressed. The statement is also suppressed as a fruit of a poisonous tree since it flowed from the unlawful stop, search and seizure of the defendant as ruled in the case of Wong Sun v United States.
Stephen Bilkis & Associates work side by side with Queens County Gun Crime Attorneys or Queens County Weapon Possession Attorneys to protect our community. We have actively fought against gun crimes and firearms possession which endangered or might endanger the lives of our neighbors. If you know of anyone in the same situation as the character mentioned above, please feel free to call us at our toll free number or visit our firm.